Dispatches from the 10th Crusade

What’s Wrong with the World
is dedicated to the defense of
what remains of Christendom, the civilization made by the men of
the Cross of Christ. Athwart two hostile Powers we stand: the
Jihad and Liberalism...read more

Report Card on Arguments Against the Death Penalty

Three so-called Catholic news organizations and one usually Catholic news organization put out last week an editorial statement against the Death Penalty (DP). As a service to our readers, I am releasing a report card that grades the arguments against the DP.

The following objectively determined grades* are assigned to arguments coming from persons who are well educated, in positions of responsibility, and have a duty to know what they are talking about. This would include priests, bishops, legislators, judges, mayors, high police officials, and governors.

A. Good arguments against DP for all times and places, as a matter of principle:

Absolutely empty set.

B. Good arguments definitively against all use of DP _today in the US_:

Empty set.

C. Good probable arguments against all DP today in the US:

Empty set.

D. Initially Plausible but ultimately ineffective probable arguments against DP _generally and for the foreseeable future_ in the US:

(1) In our present degenerate society we are unjust and we are unable to distinguish between good and bad violence.
(2) Can kill an innocent person.
(3) Drains too many resources.
(4) The job of executioner is too horrible for mortal men – too much moral danger.

E. Wrong arguments against DP generally today in the US:

(5) Does not allow for repentance.
(6) The Church now teaches that we must eradicate DP.
(7) Death penalty is “abhorrent and unnecessary”.
(8) There is no good way to put them to death that is not abhorrent, cruel, or otherwise objectionable.
(9) As a result, except in the most extreme circumstances, capital punishment cannot be justified.
In developed countries like our own, it should have no place in our public life.
(10) Christ told us not to kill the adulteress.
(11) Even a murderer retains his God-given dignity as a human being, so he must not be killed.

F. Bad arguments against DP:

(12) Execution perpetuates violence.
(13) It is an assault on life, contrary to the “pro-life” stance.
(14) Does not deter.
(15) We don’t need to kill people to protect society or punish the guilty.
(16) The Bible says “thou shalt not kill”.
(17) The state does not have the authority to put a criminal to death.

Out of 17 arguments, most of the common ones out there, not one gets a good or fair grade. The betting man is putting his money on arguments FOR DP.

* By me, of course.

A. Not only are there no good universal (valid always and everywhere) arguments against DP, it is a doctrine of Catholicism that there cannot even in principle be a good argument for this. Anyone who claims there is such an argument is in direct dispute with definitive Catholic teaching. Any bishop or priest who argues against DP in such a way as to make out that DP is wrong here today because it is wrong in all times and places, is not merely arguing incorrectly, he is setting himself in opposition to the Church herself. There are canon laws for Catholics who teach in opposition to the Church’s doctrine. Any attempt to state an argument that falls into this category automatically must fall in E or F.

Legitimate public authority has the right and the duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. [Catechism]

As we saw in a previous post, the legitimacy in principle of capital punishment is grounded in natural law and in the infallible moral teaching of scripture, and is the consistent teaching of the Catholic Church from her foundation down to the present day. It was reaffirmed even by Pope John Paul II, who was probably the most prominent churchmen ever to oppose the death penalty. Indeed, the late Pope even stopped short of claiming that capital punishment was never justifiable in practice, holding only that cases where it might be called for are “very rare, if not practically non-existent.”

The significance of this refusal of the Church to embrace doctrinaire abolitionism cannot be overstated, for it puts the Church fundamentally at odds with liberalism at the level of principle, whatever commonalities there might be between some bishops and some liberal politicians at the level of policy. And it shows how poorly thought-out and misleading are the statements sometimes made on this subject by Catholic bishops, including the recent statements cited above.

B. I do not _know_ of any arguments that are GOOD definitive arguments for the US today, that e.g. that would be a sound reason for a governor to put his name to a bill that outlawed DP in his state. I do not claim that this means THERE CAN BE no such argument. However, I know several arguments that would tend toward the conclusion that it is virtually impossible to have conditions in any polity make such law the best legal arrangement to have (short of the eschaton). This is different from arguments that it should be used sparingly or almost never in the US today. Generally even legitimate things that should be used sparingly should remain on the law books if they should be used once in a while.

C. By “probable” arguments, I mean that they propose something claimed only probably - in the sense that they hinge on matters of degree thus their form and structure can only result in conclusions of the form “therefore, it is probable that we should not use DP today in the US.” These can be right, wrong, or right or wrong to a degree and therefore reasonable, good, and well-thinking men can disagree about their weightiness and usefulness. These arguments claim something quite distinct from the ones in groups A and B that claim a definitive, certain conclusion against DP today in the US.

D(1) comes the closest, and it almost merited a C. Almost, but not quite. Why? Because it is never advanced in quite this form. If a person argued this properly, he would say that when in the future we turned society around and we had a more moral, more just society, we would re-instate the DP. And NOBODY ever argues that. They don’t believe that what we really have is a society that is so far degenerate that we cannot even employ the DP anymore, what they really mean is that society has made advances that make the DP too awful to employ. But this is a quite different argument, and it quite surely flies in the face of justice as the end of punishment – which is sound Christian doctrine. When we find someone, anyone, seriously and consistently holding forth the thesis that once we have turned our evil and degenerate defiance of the natural law around we should then employ the DP, this grade can be re-visited. If they are willing to actually address the issue of whether part of the process of generating a societal return to natural law is the use of the DP.

E consists of arguments that are wrong about the DP, but it is understandable that a high school or sophomoric college student might make such errors. Or even a naïve college grad. They are not arguments that someone who went to school as long as a priest or bishop went to school should make, nor are they arguments that a person with the kind of experience with the world that we expect of a legislator, judge, or mayor should make. These men have no excuse falling for such claptrap. If they are smart enough to have the care of the common good, they have no business making these.

F is the worst, out and out abject failure. These are arguments made by men arguing in bad faith. Or arguing who have another stance that they don’t want to trot out in the light of day because it is embarrassing. Or they have lost the light and are trying to feel their way to truth purely by smell and guesswork (try using smell alone to avoid a cliff edge). Or whatever – there are a hundred reasons, all bad. Not one of these should be made by a Christian adult, much less the highly educated Christian.

I am sorry to say that there are men out there, otherwise doing good work in the Church, who put forward not just one, but several of these wretched E and F arguments. We must certainly pray for them, but we don’t have to follow them into the hole.

Here’s how the objective observer can tell when those arguing against the DP are really trying their hardest to get the matter right and teach the whole truth: they will take on the best and most important of the arguments for DP and knock them down. Here’s how one can tell when they are not really trying: for the last 50 years (and counting) they have not even attempted to take on the most central arguments for DP and have spent all their energy on superficial and peripheral matters. One must wonder if eventually they will attempt to get to the heart of the matter, but one equally must wonder whether it will happen before the heat death of the universe and hell freezes over.

Comments (53)

As far as #1 is concerned, I have to ask who is "we." Actually, many laws do a pretty good job of distinguishing good and bad violence. For example, there are exceptions for self-defense, there are lesser offenses for accidental homicide. And usually jury instruction and the arguments of defense lawyers and prosecutors alike emphasize these distinctions. That is not to say that a jury never errs in convicting someone. That has happened, and juries have also erred in _not_ convicting someone. It doesn't actually follow, though, that a jury trial even in our degenerate age is incapable of distinguishing good from bad violence. In fact, I think many jurors have a pretty good idea of the fact that there is good and bad violence and where those fall.

Quite true, Lydia. Still, the argument is made by a certain strain of pro-lifers outraged by state sanction of the murder of abortion. For these, the fact that the state cannot "tell the difference" between abortion and self-defense, or between abortion and execution, means that the state cannot be trusted with the power of life and death - even over criminals. The argument fails both for the reason you give, Lydia, and for other reasons. Overall, even if their point were valid from the initial point of view (that the state's understanding of violence is degenerate) I think that the answer to "the state is too blind" is to TEACH the state, to MAKE the truth known. Not to retreat away from still more parts of the truth so that the state is even LESS likely to figure out the true place of human dignity. Backing off from insisting on the claim of Genesis 9:6, from God's own testimony that the death penalty MANIFESTS human dignity, will increase ignorance, not correct the misunderstanding. If some penal institutions and some judges are handing out the death penalty as state sanctioned violence and hatred the corrective is to CHANGE those prisons and judges and put in good ones, not to throw up our hands at achieving justice.

I see. I didn't know that the abortion connection was what that objection is all about. I had assumed it was a vague idea that our culture is "just so messed up" that we are likely to sentence people to the death penalty who don't deserve it or something like that.

The abortion connection makes the whole argument even more fuzzy-headed. If one knows anything about history, one knows that there have been ruthless and wicked rulers who have executed people for both the right reasons and the wrong reasons. We tend to think of a government as "all or nothing," "good or bad," "just or unjust," but that is just naive. There were plenty of Roman rulers who would sentence Christians to death for being Christians and would *also* sentence murderers to death for being murderers. The latter was just, and proceeded from the ruler's right perception of his role, though the former wasn't. (My statement that Roman execution of murderers was just is setting aside the question of the *methods* of execution used, which were immoral when torturous, even for murderers.)

(My statement that Roman execution of murderers was just is setting aside the question of the *methods* of execution used, which were immoral when torturous, even for murderers.)

Which ties in well with the point Tony is making. It is possible to raise the dignity and the virtue of secular authority. Roman law was one of the greatest achievements in the history of the human race, and yet it was by Christian standards often gravely unjust. It was to the betterment of us all that Christians did not argue that secular law was simply incorrigible--they instead accepted the right and the obligation to discipline the law of Man into greater conformity with the demands of God's love. If those demands are absolutely pacific, then anti-DP Christians should make that argument rather than arguing the tiresome "small government" point that government simply can't be trusted.

I can imagine a prosecution and criminal justice system so thoroughly corrupt that convictions for crimes like murder are so routinely the result of fakery, jury intimidation, judicial corruption, etc., that one would not be able to tell in any given case whether the verdict was true or false. I suppose that in _that_ situation one _could_ call for setting aside the d.p. temporarily until the Augean stables were cleansed, because death is a permanent punishment and the system is hopelessly corrupted and unable reliably to distinguish the guilty from the innocent.

Nor do I discount the reality of some degree of corruption and prosecutorial malfeasance in our own system, though I hear of the more egregious cases in connection with non-capital crimes other than murder, at both the "low education" end (pressing for hasty plea bargains for petty crime) and at the high end (vengeful prosecution of high-profile people for alleged financial crimes).

In any event, I do not right now see a case for the utter breakdown of our prosecution system in the area of capital crimes, though I have no doubt that true stories of wrongful prosecutorial conduct feed into the anti-dp argument.

1. Capital punishment lost a great deal of it's deterrent value when the guilty person was no longer hung from a tree on the public square reasonably swiftly after their conviction.
2. Having worked in a prison, it was my observation that the death penalty can be a way to get off easy compared to spending an entire life behind bars. Prison life is worse than they often make it look on TV, especially for violent offenders.
3. Personally, my faith in our gov't has gotten so low that I just can't find it in myself to trust it to arrest, prosecute and execute the right people consistently.

Sage, this is a superb point: "It was to the betterment of us all that Christians did not argue that secular law was simply incorrigible--they instead accepted the right and the obligation to discipline the law of Man into greater conformity with the demands of God's love. If those demands are absolutely pacific, then anti-DP Christians should make that argument rather than arguing the tiresome "small government" point that government simply can't be trusted."

Floyd Alsbach: "Personally, my faith in our gov't has gotten so low that I just can't find it in myself to trust it to arrest, prosecute and execute the right people consistently." We'd have to unpack "consistently" to discover the true character of this statement. There is indeed at least a superficially plausible argument to be made, that if the state is truly degenerate in the manner implied by some of our more boisterous opponents of the DP, then the state is not competent to "arrest, prosecute" or punish anyone for anything. Why should property laws be enforced when dupes and fallguys routine receive the jail time that hardened and clever thieves deserve? Why should tax laws be enforced when the cunning and well-lawyers cheats avoid severe punitive measures while lowly gray market hustlers get packed off to prison? As Tony mentions in a slightly different context, no one ever argues that.

Historical comparisons merit attention as well. I'm confident that late 18th century French prisons exceeded our own by a wide margin in depravity and misery; I do not doubt that the horrors recorded by in the 1780s by Simon-Nicholas Linguet and the Parisian pamphleteers; I'm still skeptical of the principles proclaimed on Bastille Day.

I can imagine a prosecution and criminal justice system so thoroughly corrupt that convictions for crimes like murder are so routinely the result of fakery, jury intimidation, judicial corruption, etc., that one would not be able to tell in any given case whether the verdict was true or false. I suppose that in _that_ situation one _could_ call for setting aside the d.p. temporarily until the Augean stables were cleansed, because death is a permanent punishment and the system is hopelessly corrupted and unable reliably to distinguish the guilty from the innocent.

It need not be systematically corrupt, but merely have no functioning mechanisms for punishing corrupt government officials. As that link and many civil libertarians have noted, prosecutors can intentionally commit criminal acts in court and they're only accountable to other prosecutors. They're almost never even disbarred for staggering levels of negligence or unethical behavior because they tend to protect their own.

Heck, there's even evidence that the prosecutor in the Mike Brown case suborned perjury and not a single investigation has been held despite the high media profile. So we can only imagine what happens when the system knows few people are really watching. The California Attorney General just got blasted by the California judiciary for appealing a verdict thrown out after it was found that the prosecutor intentionally introduced a faked confession. That's how far the system has fallen; an attorney general feels like it's not political suicide to do something like that.

I'm against the d.p. because I find it personally difficult to reconcile approaching the Chalice on a Sunday morning while simultaneously wishing a fellow human dead. In my opinion, the death penalty is like slavery -- something that perhaps was once "necessary," and therefore permissible, but isn't so any longer. My argument against it is thus one of prudence, not of any claim for or against inherent immorality.

In my opinion, the death penalty is like slavery -- something that perhaps was once "necessary," and therefore permissible, but isn't so any longer.

The teaching on slavery didn't change. Chattel slavery (the seizing and forcing of an innocent human into bondage as no more than property) was condemned by the Church every time it was addressed. There was in biblical times, and still are today, situations were there are just entitlements to another's labor.

I'm against the d.p. because I find it personally difficult to reconcile approaching the Chalice on a Sunday morning while simultaneously wishing a fellow human dead.

There is a very real difference between wishing someone dead and demanding that justice be done. You might want to consider what prison is: locking another person in a cage like an animal for a period of time. There's nothing more dignified or humane about it. In fact, one could make a stronger case that the death penalty is more dignified since it immediately carries out a punishment and doesn't force them to languish for decades. Even the kindest, most humanely run prison is still just a glorified kennel for the human form of rabid dogs.

I'm against the d.p. because I find it personally difficult to reconcile approaching the Chalice on a Sunday morning while simultaneously wishing a fellow human dead.

You may just as well say you're against war, for the same reason. Maybe you would say that. It would put you at variance with figures such as St. Thomas Aquinas which, again, may not impress you particularly. But leave us say that "wishing another person dead" is not the point of the death penalty, any more than "wishing another person to live in poverty" is the point of punitive fines.

The most common misconception I encounter in discussions of the death penalty among Christians is that capital punishment is an expression of personal hatred or the personal desire for revenge--as though it were somehow incumbent on popular authority to "forgive" all offenders in the same fashion that it is incumbent on each one of us to forgive the one who wrongs us. A murderer, though, does not only offend the murdered person; he also offends that person's family and friends; he also offends the whole of society; he also threatens the basis of civilization. That being so, legitimate Christian objections to the death penalty must be grounded in something other than the personal willingness of one or more persons to offer the accused forgiveness.

On this understanding, by saying that you personally cannot countenance the death penalty because of how you feel about other people during Communion, you are solipsitically reducing every question of justice to a question of personal piety. That's wrong for plenty of reasons, but not least because there is much at stake that does not involve individual squeamishness or pacifism.

That principle can also be applied to lesser crimes. How can you reconcile approaching the Chalice and wanting to see someone locked up for rape or robbery? How can you reconcile it with wanting to see them forced to pay a stiff fine for doing 50mph over the speed limit? At its core, the desire to see a murderer executed is a desire to see justice, not mercy, done. So that desire can be analyzed and criticized by that perspective for the most trivial crimes to the most heinous. Your question can be asked for a parking ticket or genocide.

"The teaching on slavery didn't change. Chattel slavery (the seizing and forcing of an innocent human into bondage as no more than property) was condemned by the Church every time it was addressed."

Perhaps, but I don't think you'd get a whole lot of support for, say, the reintroduction of something like indentured servitude, which is simply a milder form of slavery. I know perfectly well that all slaveries are not equal. But we in the West seem to have morally bypassed them all. Except for wage slavery, of course.

"But leave us say that 'wishing another person dead' is not the point of the death penalty, any more than 'wishing another person to live in poverty' is the point of punitive fines."

True, but for one thing fines are not as final (ahem). Redress and/or reclamation is/are possible. But if someone is executed in error there is no redress. As a certain young woman from Georgia once wrote, you can't be any poorer than dead.

Also, if the state is executing a criminal on behalf of "the whole of society," then I as an individual member of that society am implicated in that execution, like it or no.

In my view both war and the d.p. should be last resorts, not default positions of an ostensibly Christian society. YMMV.

Given that any legal system that puts DP into practice is necessarily flawed, DP necessarily involves the killing of people who do not deserve to be killed (call these people "innocent"). Now killing the innocent is obviously a grave evil. If a practice that involves such evil can be justified at all, it would have to be by arguing that there is a great necessity to engage in this practice. Crucially, this necessity would have to be a very great, inevitable sort of necessity, a necessity to which there are no acceptable alternatives. Any lesser necessity could not outweigh such a grave evil as killing the innocent.

So basically, a supporter of DP would have to argue that there is a great, overwhelming necessity to practice DP, a necessity to which there are no acceptable alternatives. Absent such a solemn necessity, DP is morally impermissible because of the grave evil of killing the innocent that it involves.

The elephant in the room here is that imprisonment itself is hardly the soft and humane punishment that opponents of the death penalty make it out to be. At the end of the day, whether you lose your entire life to the death penalty or half of it to false imprisonment, it can never be paid back by the state. Never. The state can never make good on the harm done by imposing legal sanction on the innocent. Even $100m cannot make a man whole if you take 30 years of his life because the system failed to obey the law and act honorably. That time is gone. It can no more be restored to him than you can reanimate a corpse that has been rotting for 30 years. The best that can be done is to provide financial compensation and hope they accept it.

In my view both war and the d.p. should be last resorts, not default positions of an ostensibly Christian society. YMMV.

St. Paul's mileage obviously did vary. So did God's when he instituted it in Genesis 9.

In my opinion, the entire opposition to the death penalty flows from sentiment, not anything like reason, not even reason informed by Christian theology and tradition or by natural law.

The state should execute people who deserve that punishment. The state should do it as a matter of justice and as a matter of the rightful functioning of the ruler as a punishment of evildoers. This is all straightforward. This isn't about vaguely making society better or a strategy for social change. In that sense terms like "first resort" and "last resort" are not even applicable to the question.

Given that any legal system that puts DP into practice is necessarily flawed, DP necessarily involves the killing of people who do not deserve to be killed (call these people "innocent")....Any lesser necessity could not outweigh such a grave evil as killing the innocent.

Whoa, we have _major_ leaps in logic here. Leap #1 (the biggest non sequitur): Moving from "is necessarily flawed" to "necessarily will result in executing the innocent." That does not follow. Perhaps the flaws in the system will always result in acquitting the guilty. Or perhaps the flaws in the system, when an innocent person is found guilty of a capital crime, will in practice always be caught during the lengthy appeals process before he is actually executed. There is by no means any certainty that an innocent person will ever be executed in our present set-up, and that certainly does not follow from "any system is necessarily flawed." Leap #2: Moving from "the system is necessarily flawed" to the conclusion that advocating the d.p. is advocating _actually_ killing the innocent. That does not follow. At the most, advocating the d.p. is advocating a policy in which it is _possible_ that someone innocent will be executed. You cannot turn possibilities even into probabilities, much less into actualities, just by assertion.

Mike, this is one of the most important concepts to keep in mind for the debate over DP: around 2/3 of the arguments against DP would undermine ALL punishment, or at least all punishments as ever practiced in this world. The problem is that the argument, if valid, proves too much. If the fact that "we can never restore to the punished what we took away if we turn out to be wrong" is valid and works for DP, then it applies probably to any prison sentence, but it obviously applies terribly well to life sentences: after the guy spends 60 years in prison, we cannot give him back his 20's, his 30's etc. More, we cannot give him back his wife who divorced him and married another guy, we cannot give him back the children he would have had with that wife, we cannot give him back the LOVE of the children who grew up thinking he was a murderer, etc.

The best that can be done is to provide financial compensation and hope they accept it.

Financial compensation may apply in cases where the prosecutor or judge are shown to have abused the system. They do NOT apply, in any way, shape, or form when it was just an honest mistake, say, an accident of having too much circumstantial evidence point in the wrong direction. If the system goes through the whole trial where everyone tries to give the right balance to the right issues and strives for justice, and they convict the wrong man anyway, when they find out the truth the state does not owe him "compensation". Not at all. There is no such thing as just compensation for making an honest mistake - one you tried your hardest to avoid and made all due efforts to prevent - no matter how ill the effects are. What the state can do is give him a stake, money to get him settled and re-started, not because he is "owed" the money, but because doing so is better for the common good than leaving him stranded.

And this, indeed, is important generally: you don't apologize for trying your hardest and missing, you apologize for not trying fully. What you do when you try and miss, is you sympathize with the victim and try to make things better out of commiseration. Commiseration is NOT reparation: co-misery comes from the same root as misericordia (mercy) - i.e. pity of the heart, pity that you feel for another. Mercy is not justice. It is a great good, an important virtue, but it isn't justice.

Given that any legal system that puts DP into practice is necessarily flawed, DP necessarily involves the killing of people who do not deserve to be killed (call these people "innocent").

Just Visiting, thanks for dropping in.

In order to have valid conclusions, you have to have valid premises. In the case of DP, since there is so much contention, it is important to get things precisely correct. Here, the use of "necessarily" is erroneous. Because men are prone to errors and mistakes, they hardly ever achieve large, complex endeavors over long periods with 100% perfect accuracy. But the REASON they fail, when they fail, is not "necessity" but quite the opposite, bad chance, ill luck, misfortune. That is, the causes of success when we succeed are due to foresight, planning, rationally applied effort to intended goals. The causes of failure are things that escape foresight - e.g. chance events - or, in a word, CONTINGENT causes. It is not necessary that men fail of their intention, it is due to contingent causes that may come about or may not. Sometimes they do, sometimes not. When you have a million-part airliner operate correctly without fail for 50 years service, that's an indication that contingent causes are not "necessary."

Does that affect the argument? Well, it does if "necessary" were being used properly.

Now killing the innocent is obviously a grave evil. If a practice that involves such evil can be justified at all, it would have to be by arguing that there is a great necessity to engage in this practice.

Let's make more distinctions here. Killing the innocent by accident is not a moral evil at all, it is an accident. Allowing the killing the innocent as a clearly foreseen but unpreventable side-effect of doing something important falls under a different calculus. Would it have to be argued that there is a "very great necessity" to engage in this practice.

Repeat after me: your argument proves too much. Driving cars kills innocent people. Every year people die in car accidents. Is it a "very great necessity" to drive to the grocery store 2 miles away for a bag of groceries? No, you could walk. Is it a "very great necessity" to drive to the cinema for a movie? Heck no, just wait until it comes out online. In fact, most people would have to give up their cars and get jobs within bike-riding distance.

But we none of us think that you must have "very great necessity" for every mile you drive to justify the risk of killing an innocent person in driving. The risk is small. In fact, it is morally negligible *in some sense*, and this is at least in part due to the fact that we take all measures we can devise to prevent it. There are other reasons that come into play as well, I am not going to go through all of them. The point is, the risk / benefit calculus of something as important as justice admits of even accidentally killing the innocent.

Crucially, this necessity would have to be a very great, inevitable sort of necessity, a necessity to which there are no acceptable alternatives.

Even though we have shown that this would not follow from the prior points, it also fails on its own: Justice is that "very great, inevitable sort of necessity." Let's be absolutely clear here: The justice that lies in retribution is ITSELF the "very great good" that the state aims at. JUSTICE, is one of the necessary, sine-qua-non's of the state, one of the main reasons for existing. It is a cause people ought to be willing to die to preserve, which is just what we ask of police. Yes, justice is worth it. Yes, yes,yes, YES!

If the fact that "we can never restore to the punished what we took away if we turn out to be wrong" is valid and works for DP, then it applies probably to any prison sentence

Not probably, but does apply in full force. Opposing the death penalty is a cheap shot at moral posturing. It avoids dealing with the reform issues that are necessary to make the system work like ending immunity for government employees, repairing the independence of grand juries and flushing out the junk science that permeates forensics.

FWIW, the Supreme Court recognized that if prosecutors could be sued for what they do in court it would have a "chilling effect" on their conduct. Consider that one for a moment. They have absolute immunity (police only have "qualified immunity") because the SCOTUS doesn't want to impose a "chilling effect" on their courtroom conduct.

Tony has already answered that. If we stopped doing everything that has the _possibility_ of _accidentally_ killing an innocent person, we would go and sit in a dark basement for the rest of our lives. Come to think of it, for those of us who are responsible for other people, _that_ could end up accidentally causing a death. A mother who drives her sick child to the doctor could accidentally kill somebody. Maybe she should just put the child in the closet and do nothing.

If you engage in defense of your innocent child from the immediate attack of a deranged would-be murderer, you may accidentally kill an innocent bystander somehow. Yes, that's collateral damage. It isn't a dirty word.

Life is not without risk. People just feel icky about the death penalty and war, so they cast their opposition in extreme and irrational terms about "necessarily killing people," not realizing that by that token (that we must avoid all _possibility_ of accidental killing) our actions would be absolutely paralyzed in obviously non-icky areas of life as well.

So justice trumps mercy. Well, this is one Christian gentleman who's frightfully happy that God isn't quite so Jesuitical.

Please, re-read the argument and address what it actually says. Not one single word in it casts up the question of justice vs mercy. Your argument didn't address itself to mercy, and I did not respond on any basis that compared justice and mercy.

By all means, mercy is (from our human standpoint) a more noble virtue than justice. It is a higher thing. But that doesn't mean justice is not a VIRTUE, because it surely is. All the psalms that venerate justice prove that. God's immense justice is not a defect in mercy, in God the two are perfect. God, being transcendent, can fulfill mercy even in the midst of fulfilling perfect justice.

To say (as I did) that justice is a core purpose of the state, one of the common goods that is the state's reason for existing, that does not denigrate mercy one iota.

In the state, justice is a CORE objective, a sine qua non, a "that without which" the state couldn't even be said to function properly. Mercy, on the other hand, though it is an even greater good than justice (under the proper light) is NOT one of the goods that is the proper object of the state, it is NOT one of the core goods that it serves, it is not a sine qua non without which the state must be said to be a complete failure. Hence, if the state can serve mercy (and sometimes it can), it must do so in such a way as to not undermine justice. The state, NOT BEING TRANSCENDENT, sometimes cannot make serving visible mercy (except by simply following the course of justice itself) something that does not undermine justice - it is more limited in power. Hence, in those cases, the state must serve justice and leave formal mercy to those parties for whom it is their proper role: the Church, private individuals, and God himself.

Mercy does not trump justice. Nor does justice trump mercy. Viewed properly, the two virtues go hand in hand. This means that the same act cannot be wholly satisfactory to one and be contradictory to the other - such an act would in fact be defective regarding both. Mercy that is unjust is not REALLY true mercy (stealing from the collection plate to be merciful to the poor beggar is not real mercy, it is false mercy.) Mercy that defeats justice is defective mercy. God did not mercifully simply blot away all our punishment due for sins against Him, He (through Jesus) paid the price in full, justice served and mercy applied, together. Likewise, so-called mercy by the state that confounds the justice called for by offences against society, simply blotting away the punishment due without any balancing of justice, is not REAL mercy, it is defective. The state, unlike God, cannot simply give the grace of repentance to sinners. The state, at best, can afford a call to grace by the Church, by individuals, and by God himself. One of the ways the state does this is to focus the mind of the criminal on the gravity of his situation ("Depend upon it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully."), which gives the pastor of souls his opportunity to prepare the criminal to face the his Judge immediately after having chosen to accept his punishment in expiation for his evil acts. This is an example of justice itself indirectly serving mercy.

Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. [Catechism of the Catholic Church]

This is the same sort of "logic" that dismisses the killing of the innocent in war as "collateral damage." Thanks, but no thanks.

Since someone must be the bad guy, I'll self-nominate. Stop being such a limp-wristed coward and address the points about false imprisonment and how they relate to capital punishment or just admit that your position is based purely on sentiment.

So justice trumps mercy. Well, this is one Christian gentleman who's frightfully happy that God isn't quite so Jesuitical.

The necessity of the Incarnation, and the Atonement itself, are testaments to the fundamental primacy of justice. You seem to think something like the inverse view, that "Mercy trumps justice," which is a wholly contemporary, Christianity-as-sweet-sentiment take on things. Let injustice be done, that we might show ourselves before God to be more soft-hearted than even He!

But the authentic Christian view is that virtues do not "trump" one another at all. That is the pagan view, which is why in pagan mythology the gods are constantly at war, while the true God of Christianity is a holy unity of persons.

In response to William Luse: Yes, if DP were applied only to those who deserve to be killed, I would support it.

In response to Tony: Killing someone with your car because of inattentive driving is very different from killing someone by strapping them to a chair and injecting them with a lethal poison that's been ordered for the occasion. In the case of DP, the killing is part of a systematic, deliberate practice, carefully planned, and fully intentional. This element of intent to kill makes executing an innocent person dissimilar from killing an innocent person through negligent driving. The latter is a tragedy. The former is, on account of the deliberate and intentional nature of the killing, an evil. And it's the fact that the practice of driving at worst involves tragedy whereas the practice of DP involves evil that makes driving relatively easy to justify, while DP can be justified only by demonstrating great necessity.

In the case of DP, the killing is part of a systematic, deliberate practice, carefully planned, and fully intentional. This element of intent to kill makes executing an innocent person dissimilar from killing an innocent person through negligent driving.The latter is a tragedy. The former is, on account of the deliberate and intentional nature of the killing, an evil. And it's the fact that the practice of driving at worst involves tragedy whereas the practice of DP involves evil that makes driving relatively easy to justify, while DP can be justified only by demonstrating great necessity.

Just Visiting, this doesn't hold together. Not really. by "an evil" you either mean an evil of the physical order, or an evil of the moral order. Now, clearly killing an innocent person by poor driving is an evil of the physical order: to die is a bad thing for humans, human beings are ordered to being physically alive. But THAT is true in just the same way for executing an innocent person: it results in an evil of the physical order. Not only that, there is a result of an evil of the physical order when you execute a guilty person. ALL of these share equally in "evil of the physical order", there is not any distinction there.

So you must mean it is an evil of the moral order, a moral wrong to _do_ the act. But you say that it is on account of the "intentional and deliberate nature of the killing." It is perfectly true that killing an innocent person deliberately and intentionally as such (as innocent) would be an evil of the moral order. But Pope John Paul II (in Veritatis Splendor) and St. Thomas make it absolutely clear how that works: the disorder of such a deliberate immoral act is IN THE WILL (as all deliberate sins are), making a choice on information provided by the mind. The will, choosing "to kill this man whom I know to be innocent" is, by its very form, an immoral choosing. The disjuncture that makes it be immoral is the disjuncture between (a) willing the death, on (b) an innocent person. Both halves of that dis-junction are held IN THE WILL, which is what disorders the will. That's what makes it an immoral act.

That is, also, what makes murder to be deliberate, intentional: it springs from the will acting on what is known in the mind. But the execution of an innocent person (assuming the state thinks through deliberative process that they are guilty) is NOT THAT. The innocence is NOT in the mind of the executioner. Therefore, it cannot be in the will of the executioner either. the executioner cannot be "deliberately killing an innocent person", he is not "willing the death of this person whom I know to be innocent." There is not that unjust disjuncture between (a) willing the death, of (b) an innocent person, both aspects sitting in the will, so the will cannot be disordered by THAT kind of dis-junction.

There are words we have for acts where the person's will stems from what is in his mind but his mind (through no doing of his own) happens to be wrong about the actual facts: MISTAKE, and ACCIDENT. Mistakes and accidents are not moral disorders, they are defects of the physical order. When you think your car can handle the wet pavement but if underneath the rain there is ice that you didn't (and couldn't reasonably) know about, you spin out of control and crash, that's an accident. Knowledge of the ice was not in the mind, so choosing to act without regard to it is not an evil of the will. Simple accidents are not moral evils.

(Both for the driving accident and for execution, there is the possibility of the moral wrong of negligence. If you drive carelessly, you are morally responsible for the accident resulting, though in a different degree than if you had spun out intentionally. Same with execution: if you are negligent in running a trial, the state (ie the judges, jurors, attorneys, etc) would be morally responsible for the death of an innocent person, though in a different degree than intentionally putting a known innocent to death. But nobody is here suggesting that the state can be negligent and still escape censure. I am merely pointing out the distinctions between directly intentional and the simply accidental, and negligence that lies in between the two.)

In order for your thesis to hold water, you would have to give up the entire distinction between accident and intention, and confuse the physical order with the moral order. Which would bring the whole edifice of justice and law (and morality) crumbling to a heap. A surgeon, who knows that there is a risk of accidentally killing the patient through the surgery, would be forbidden to operate because any such the death would be a moral evil. Accidents in hunting mean that hunting would be immoral. Accidents in prosecuting war, where you sometimes kill through "friendly fire" would make such acts morally wrong, and all war would be immoral as a matter of course. Accidents in prescribing medicine, which sometimes kills, would make pharmacy an immoral profession - causing such deaths would be morally wrong. (Deaths through badly prescribed and badly filled medical orders kills more than all but the highest few categories of disease.)

This element of intent to kill makes executing an innocent person dissimilar from killing an innocent person through negligent driving. The latter is a tragedy. The former is, on account of the deliberate and intentional nature of the killing, an evil.

No, this is simply confused. If an innocent person is executed, while the killing is deliberate, the killing *of the innocent* is an accident. If those involved in the execution knew that *that person* was innocent, they should not kill him. If the judge knew that *that person* was innocent, he should not pronounce the sentence of death, and so forth. We are envisioning a situation in which it is *rationally believed* by those engaged in bringing about his death that that person is guilty. In that case, the person is not deliberately killed qua innocent person. He is mistakenly killed under the justified belief that he is guilty. This is all pretty straightforward. The fact that he is killed deliberately and in fact _happens to be_ innocent doesn't make the act of execution a deliberate killing *of* the innocent. (Contrast deliberately stabbing a baby, for example.) That is just a confusion.

Yes, if DP were applied only to those who deserve to be killed, I would support it.

I would also support my doctor's prescribing an antibiotic if he could offer absolute certainty that I won't suffer anaphylactic shock. But since he can't offer that certainty, he should never prescribe it.

Lydia, I think I've given up arguing with people who refuse to distinguish between the accidental and the intentional. It's nothing more than pacifism, a depraved doctrine that results in the moral paralysis you point to. If anyone ever comes up with an antibiotic cure for holier-than-thouness, it won't go by the name of reason.

The following hypothetical scenario will not save the erroneous arguments of those who believe the DP is simply wrong altogether, nor will it save several of the D and E arguments. It does address concerns in (2), (3) and (5) to a considerable extent. But it may help to clarify, for those who oppose the DP under current conditions, just how far their opposition would extend if conditions changed.

I propose as a hypothetical the creation of large "Sanctuary" compounds, a la the Bible, Numbers 35. A person who is indicted, charged, or convicted of a capital offence (of a crime for which DP is an eligible penalty - not all murders are such, and other crimes such as rape and child molesting also qualify) is given a choice: (A) he can claim sanctuary and go live in one of these compounds, or (B) he can continue the rest of the trial process ( including deciding whether death will be the penalty or not) and the appeals process. He cannot claim sanctuary once he gets a jury verdict of guilty, but he can claim it before the trial is over. The conditions for (A) and (B) are as follows:

(A) Sanctuary is peopled by adults (only) who oppose the DP or otherwise hold mercy for criminals, and who are willing to live with criminals. The conditions are a little better than prison, but mainly a very plain, simple life (much like that of 1920 but with antibiotics) without vast opportunity for entertainment (no TV or movies). The permanent minimum population balance is at least 2/3 civilians vs no more than 1/3 criminals. If the civilian level falls too low, the compound cannot receive more criminals. If any offender commits ANY violent crime, he is immediately handed over to the Death Row prison and scheduled for execution in 2 weeks, with no possibility for appeals or commutation of sentence by the governor. If he steps outside of the Sanctuary he may be immediately killed by any citizen. He will wear an ankle locator-bracelet that monitors his location, and if he takes it off he is treated as having left Sanctuary. The criminals must work for their upkeep - there will be sufficient opportunity for productive labor to that purpose. They also get no vote on civil matters either within or without the Sanctuary.

(2) The appeals process is re-formulated to last no more than 2 years, including ALL levels of review. If a defendant thinks he has a case that might go to a higher court, he has to factor that in earlier - but he is also allowed to REQUEST that earlier, and each court is required to conclude their deliberations within 4 months - including fact finding needed or requested. The criminal cannot go to Sanctuary after starting appeals, it's one or the other. (Assume also a revision of the legal process to eliminate real systemic racial prejudice and other deformities of justice). The defendant can call on the services of a "pro-bono" set of citizens willing to donate their time, consisting of (a) lawyers and (b) civilians willing to do the leg-work on gathering facts etc, to offset the claims of systemic bias with the "vast resources of the state" in pursuit of conviction. They also bear the cost of defense, outside of standard 1 attorney's costs as currently would apply for a non-capital trial. (The benefit of this will be limited by actual, willing hands pitching in to help.) If the defendant is convicted, and if he is sentenced to death, the sentence will be carried out no later than 2 years after conviction (unless commuted by governor, as per usual).

This rids our system of interminable appeals and their costs for those who really have no business asking for it - the truly guilty. If a criminal thinks that he might not win in court or appeals, he's better off just claiming sanctuary and we don't have to spend 100s of thousands on his further legal work. It rids our system of evil men who spend an average of 11 years kludging up our society, they have 2 years and that's it. It rids our system spending claimed "vast amounts" on evil men, money that can go to victims and the poor (including preventing poverty-caused crime to begin with). It gives those who know they are guilty a permanent place to learn repentance and practice atonement - if they are willing.

This puts people who oppose the DP out of "mercy" on the spot: real mercy is an act of love for the human person, not just hatred for a process. Show that you have real love - go live with him. You be the one to volunteer to take the chance to live with murderers who deserve to die, don't impose it on "society" (not even other prisoners in regular prison, for "to be in prison" is not supposed to constitute a punishment through the danger of being killed by constant exposure to murderers). These also bear some of the cost of defending him, to the extent that would otherwise rise above ordinary trial costs (for non-capital crimes).

I want to see if there are any DP-opposed people who will support such a concept, will volunteer their time (and money) to defend the indicted, or will volunteer to live with them in sanctuary - and enforce the "one violent crime and you're out" rule.

Puzzlement regarding DP partly reflects the emancipation of the individual from the tribe. Come to think of it, how could the tribe, i.e., the neighbors, have the moral authority over any individual and judge him?
So, a single neighbor punishing me is morally wrong but a group of them punishing me, is supposed to be morally correct?
This is the problem that plagues libertarians-how could a particular person or a group of person have the power and authority the rest of the people do not have?

The questions they ask have not been answered yet. The OP assumes, as a matter of course, that "we" have the authority to judge an individual and inflict punishment on him. But how could "we" have this authority is mysterious and left unexplained.

>>>You seem to think something like the inverse view, that "Mercy trumps justice," which is a wholly contemporary, Christianity-as-sweet-sentiment take on things. Let injustice be done, that we might show ourselves before God to be more soft-hearted than even He!

Hmmm. Do the Desert Fathers ring a bell? St. Isaac of Nineveh? The Optina Elders? In God there is no conflict between justice and mercy (charity). In us, not so much. And it seems rather obvious to me that the history of man shows far more of an inclination to overcorrect on the side of (ostensible) justice than on the side of charity. We tend to want to be "right" far more than we want to be charitable, and this flies in the face of our stated goal of becoming ever more Christ-like.

In one of his essays Richard Weaver discusses the fact that driving involves a trade-off of sorts: we are willing as a society to accept 50,000 highway deaths a year in order to allow us to travel at 50 m.p.h. This does not make driving a car inherently evil, obviously. In a similar manner I do not think the the DP inherently evil, just as I do not think slavery inherently evil. Scripture and Tradition allow for both. I do think, however, that given the present state of our society, both moral and legal, the exercise of the DP is seriously imprudent. God has given the state the power to wield the sword. But this in no way guarantees that the state will wield it properly, and thus it can't be taken as a blanket endorsement of the DP at all times and in all places. And imo in our society the negative tradeoffs are too great.

Reduce this to personal piety and sentiment if you will. But I'd argue that if more Christians exercised such a personal piety and sentiment there would be far less need for the DP, and when it did need to be used it could be used with more care and solemnity, and defended with less abstractness and flippancy.

Since life and liberty are different on several levels, esp. when the latter is understood in Enlightenment "Lockean" terms, I see the comparison as inapt.

That difference is not relevant to the issue raised. The issue is that you are concerned about grave injustice. Just because executing an innocent man is worse than locking an innocent man up in a cage for life doesn't change the fundamental issue of trust in the process and people. A state that cannot be trusted to execute cannot be trusted to imprison for any non-trivial length of time because what you are really saying is that you don't trust it to do justice.

Unless of course, you believe that false imprisonment is just an unfortunate thing, not a grave injustice.

"Just because executing an innocent man is worse than locking an innocent man up in a cage for life doesn't change the fundamental issue of trust in the process and people."

The fundamental issue is not trust in the process and the people. Life is qualitatively different than liberty, in that only God can give the former. To take a man's life is to take something which cannot be restored. Liberty can, in fact, be restored if an error is made. And also liberty can be voluntarily surrendered -- that's what monks and nuns do -- without sin, which is not the case with life, and which demonstrates the difference between them.

And also liberty can be voluntarily surrendered...without sin, which is not the case with life

We've hit full "say anything to avoid giving ground" mode here. Life obviously can be voluntarily surrendered without sin. It's something that--surprise!--monks and nuns often do.

And besides, you keep making objections that have been answered already. It's just not true, as has been stated, that when the the state imprisons a man for 30 years, or for the rest of his natural life, that it is taking something which can be restored to him. Which is why MikeT has tried fruitlessly to get you to acknowledge the severe, grave injustice involved in imprisoning an innocent man for decades, or for his entire life, which is always the fallback punishment of anti-DP activists when confronted with the really hard cases ("We pinky-swear that this serial murderer will never see the light of day again!").

"It's just not true, as has been stated, that when the the state imprisons a man for 30 years, or for the rest of his natural life, that it is taking something which can be restored to him"

The lost 30 years cannot be restored, but at least an attempt at some commensurate restoration can still be made. The ability to live the rest of his life in some degree of comfort, say. The point is that the fellow still has life. If you can't see the difference here I don't know what else to say.

And btw, if you read my post completely you would have seen that I specifically mentioned monks and nuns.

And let's not forget that ho-hum attitude toward prison rape. So again, V.O.L., can the state restore to a man his dignity and innocence after, say, 20 years subject to sexual torments for a fraudulent prosecution?

The argument that the modern state is too degenerate to carry out capital punishment is basically indistinguishable from an anarchistic argument that the state is too degenerate to carry out any punishment.

To take a man's life is to take something which cannot be restored. Liberty can, in fact, be restored if an error is made.

An irrelevant distinction since the point was always about the inability of the state to restore the harm done by sanctioning an innocent man with prison or execution. In both cases, the state is unable to provide an in-kind restoration to the victim. That one injustice is worse than the other here only puts them on a sliding scale when you discuss it from this angle.

In God there is no conflict between justice and mercy (charity). In us, not so much.

VOL, that presents your first mistake. Mercy is not to be equated with charity. In God, of course, they are united, but that is because in God ALL of the virtues are united. In God justice and mercy are united. From our discursive perspective, a notional distinction between justice and mercy can be understood, and so too a notional distinction between mercy and charity can be understood. Therefore, mercy and charity are not to be equated. Speaking from the perspective of man, charity overarches ALL of the other virtues, and the man who is perfectly charitable has perfect justice as well as perfect mercy. Before perfection, a mostly charitable man can be just better than he is merciful, or he can be merciful better than he is just - but neither is mercy nor justice identical to his charity.

In one of his essays Richard Weaver discusses the fact that driving involves a trade-off of sorts: we are willing as a society to accept 50,000 highway deaths a year in order to allow us to travel at 50 m.p.h. This does not make driving a car inherently evil, obviously.

Neither is driving a car an inherent good for a man or for society. But achieving justice is an inherent good for society. The core reason for the state is the common good (with respect to the temporal order). You can't get justice out of "the good". Imposing due punishments on behalf of justice is, itself, perfective of the order of society. You cannot just stop handing out just punishments and have the common good like it would be possible to not drive cars and have a good society.

The fundamental issue is not trust in the process and the people. Life is qualitatively different than liberty, in that only God can give the former. To take a man's life is to take something which cannot be restored. Liberty can, in fact, be restored if an error is made. And also liberty can be voluntarily surrendered -- that's what monks and nuns do -- without sin, which is not the case with life, and which demonstrates the difference between them.

Saint Maximillian Kolbe surrendered his life voluntarily for another. To harp on a point already made. He just up and said "take me, instead." It's one (partial) reason he's a saint - and he didn't offer it because he was a monk. "If you try to hang on to your life, you will lose it. But if you give up your life for my sake, you will save it".

Liberty cannot always be restored. If you make an innocent man insane by locking him up because you thought he was guilty, when you find out he is innocent you may not be able to release him. If you sentence a man to life in prison for murder, and he lives 5 years and then dies (from bad food, lack of exercise, and surrounded by a toxic environment of hatred), you cannot give him his liberty. But the particulars here are irrelevant: you cannot EVER give him back all of what you took away, unless that was just a fine. We don't think imposing prison is a grave danger to justice (in light of mistaken convictions), even though you can never return his lost years in prison. We cannot restore him to his professional position. We cannot restore him to his family as if the mistake never happened. The fact that we cannot unravel the evil he suffers is NOT AN ARGUMENT against using a given form of punishment. At least, it's not a good one. If it were a good one, it proves too much, we would have to get rid of prisons. The fact that you cannot stop the process of punishment after his death is true of both the death penalty and a life sentence lived in prison. (As it is also true of spanking after the spanking is done.)

but at least an attempt at some commensurate restoration can still be made.

But we do not think that "commensurate restoration" is due for the time spent. As I said above, and you ignored.

Let's make it concrete. Bill is erroneously convicted and spends 15 years in prison before we find out our error. Carl is in the same boat, but it is 30 years. In both cases the police, attorneys, judges and juries all are trying to be just, they miss the mark out of honest mistakes. Commensurate restoration would have it that society owes Carl 2 times what it owes Bill. And this is simply not true. The evils that these men suffered are to be attributed to bad luck, ill fate, chance, misfortune, accident. Society doesn't pay people for being the victim of accident. Society isn't in that business. If society owes them something, what it owes them isn't due to the years they suffered innocently, but rather society owes them a real and fair chance at reconstructing a modest facsimile of the life they would have been able to construct without the erroneous conviction. Which is, roughly, owing to each of them the SAME kinds of opportunity: send both of them to school for training in the current world, set up both of them in a decent living situation until they are done with school, put them into a decent job location program after, and make sure they have access to fair business loans (not tinged by any conviction or "why haven't you done anything useful for 15 years" questions) if they are going to make their own business. That's EQUAL treatment, not commensurate to their unequal time suffered. And it is not owed to them in the same sense that the state owes a contractor to pay for the contract the state agreed to. The owing is not the ought of commercial justice (where each party gets and receives equal value) but that of distributive justice where the society allocates its own goods so as to promote the best overall good.

The questions they ask have not been answered yet. The OP assumes, as a matter of course, that "we" have the authority to judge an individual and inflict punishment on him. But how could "we" have this authority is mysterious and left unexplained.

Bedarz, I know that you and I disagree utterly about the basic nature of society as organized, but you don't have to be an idiot in addition to disagreeing about that. You might have noticed, had you stopped to think for, say, a minute, that the OP wasn't about giving the arguments that underlie my claims. So, finding that I didn't argue the claims wasn't merely "assume[d], as a matter of course" that the state has the authority to judge an individual. I do indeed THINK that's true, but I don't simply assume it. I don't need to. The point can be argued very extensively indeed. I won't do so with you because this OP isn't about the fundamental nature of the social order, which is how far we would have to start to make any headway with YOU. Most of our readers readily acknowledge the state has the authority to punish, and that is good enough for current purposes.

If you honestly want (just a smattering) of why the state has the authority to judge, I invite you to read what I say in Ed's blog on the current kerfluffle, here:

at March 12, 11:05am. And at 6:45pm. The basic point is that ANY organized entity acts to correct that which violates its integrity. That's just a tiny bit, of course, and comes nowhere near to making the entire argument. Other things must be argued, including why the political social order is not a "contract", nor is it a tribe. I am not making them here.

This is the problem that plagues libertarians-how could a particular person or a group of person have the power and authority the rest of the people do not have?

It is indeed. There aren't many libertarians around here at W4, certainly not me, so this truth discomfits me not in the least. Indeed, I would make this point precisely to show why libertarianism is wrong. (They would often respond with "contract theory", but I don't think that works either - notably it doesn't work for children, and none of the libertarian theories work for children. The whole mindset ignores that adults start out as helpless infants.)

But this point speaks hardly to the issues here, which is just how bad, (or awful, or revolting) are the arguments against DP, or (if you would like) to dispute one of my grade assignments and show why it should be higher or lower on the list. Without assuming, on your part, that society isn't organized into states that have authority to punish. If you have something constructive to contribute, I am willing to hear it.

The point is that the fellow still has life. If you can't see the difference here I don't know what else to say.

V.O.L., of course we can see that "the fellow still has life." The problem is "that the fellow still has life" (or, after DP, does not have it) is not determinative of the main issue here. A person does not still have life after a life sentence lived in prison - but that he doesn't "still have life" doesn't defeat the propriety of life-in-prison sentences. More is needed to make the argument complete, and the more just isn't there.

The normal form of this argument goes something like this:

1. There will be some failures of the justice system, innocent men put to death by DP.
2. This is an injustice to the innocent man.
3. If the state were to limit itself to other punishments, the state would have the capacity to leave off imposing an unjust punishment on an innocent man, and correct the degree of unjust punishment by recompense.
4. The good of justice requires recompense for the innocent man suffering such an evil.
5. With DP there is no possibility of restoring justice by ending the punishment and paying recompense.
6. Therefore, DP is too risky a punishment to use for the sake of justice - it risks an irreparable evil, an evil that is avoidable.

This argument fails for a number of reasons, as already pointed out. Here I am going to give another. St. Thomas reminds us that

sin incurs a debt of punishment through disturbing an order. But the effect remains so long as the cause remains. Wherefore so long as the disturbance of the order remains the debt of punishment must needs remain also. Now disturbance of an order is sometimes reparable, sometimes irreparable: because a defect which destroys the principle is irreparable, whereas if the principle be saved, defects can be repaired by virtue of that principle.

[and]

Punishment is proportionate to sin in point of severity, ...Now according to Gregory (Dial. iv, 44) it is just that he who has sinned against God in his own eternity should be punished in God's eternity. A man is said to have sinned in his own eternity, not only as regards continual sinning throughout his whole life, but also because, from the very fact that he fixes his end in sin, he has the will to sin, everlastingly.

The state, too, has to deal with the punishment of offenses whose evil is of an indelible sort. Treason, especially with an aim of actually destroying the state, is one such crime. If the treason were successful, the destruction of the state would in principle make the disorder irreparable. If you destroy not just the superficial aspects but the principle of a thing, it cannot be repaired. If a punishment is to be adequate to that sort of crime, it too will be irreversible. If the state were to limit itself to punishments that were reversible, it could not punish adequately to the crime. Hence, what we have here is a simple trade off: if you always punish the guilty reparably, you never achieve justice in capital cases - by a universal penal deficiency - but if you always punish the apparently guilty (but actually innocent) irreparably, you can never repair an accidental penal excess (when you discover it is an excess). The latter evil is not definitively a worse evil than the former evil. (It would depend, among many other things, on probable rates of accuracy vs error.) Never applying DP doesn't just RISK an irreparable evil, it presents an ACTUALLY unremediated evil - the evil of the crime will never be redressed adequately. So, even if prior statements 1 - 5 were valid (they aren't, not fully), 6 would not follow certainly.

Due regard for what is true in statements 1 - 5 would make it morally necessary for the state to do everything within reason to obtain only true convictions in capital cases, to make the error cases as rare as humanly feasible while still carrying out the basic purposes of government. That does not imply never using the DP.

Lydia, I only meant to make the obvious point that you agree with at the beginning of your response, namely that when an innocent person is executed, the killing is deliberate.

I pointed this out to show that DP is very different from driving cars. The practice of DP involves intentional, deliberate killing whereas driving cars only involves accidental killing (setting aside cases in which a driver aims his car at a pedestrian with the intent to kill the pedestrian). So I just wanted to explain why the comparison to driving cars is such a misleading analogy. For an acceptable analogy, you'd have to compare DP to a practice that involves intentional killing.

Re: monks, nuns, martyrs, etc. The self-giving of their lives does not equate to the deliberate taking of their own lives. They are not committing suicide, iow. This was my point.

"VOL, that presents your first mistake. Mercy is not to be equated with charity. In God, of course, they are united, but that is because in God ALL of the virtues are united. In God justice and mercy are united. From our discursive perspective, a notional distinction between justice and mercy can be understood, and so too a notional distinction between mercy and charity can be understood. Therefore, mercy and charity are not to be equated. Speaking from the perspective of man, charity overarches ALL of the other virtues, and the man who is perfectly charitable has perfect justice as well as perfect mercy. Before perfection, a mostly charitable man can be just better than he is merciful, or he can be merciful better than he is just - but neither is mercy nor justice identical to his charity."

From what I recall, mercy does not rank among the primary virtues but subsists as a sub-virtue, so to speak, under the category of charity.

"The argument that the modern state is too degenerate to carry out capital punishment is basically indistinguishable from an anarchistic argument that the state is too degenerate to carry out any punishment."

Please. It should be obvious that capital punishment is of a completely different sort than other punishments, in the sense that what is being taken away cannot be restored in any shape or manner whatsoever. You are talking as if life is merely the sum total of the years of one's existence. But the sense in which you take a man's life away by locking him up until he dies is different than the sense in which you take it away by electrocuting him or chopping off his head.

"I pointed this out to show that DP is very different from driving cars. The practice of DP involves intentional, deliberate killing whereas driving cars only involves accidental killing (setting aside cases in which a driver aims his car at a pedestrian with the intent to kill the pedestrian). So I just wanted to explain why the comparison to driving cars is such a misleading analogy. For an acceptable analogy, you'd have to compare DP to a practice that involves intentional killing."

This was my point in bringing up the Weaver reference. If we are able to see the implications and "do the math" related to non-deliberate killing, surely we should be even more cautious when it comes to the intentional taking of a life.

Re: monks, nuns, martyrs, etc. The self-giving of their lives does not equate to the deliberate taking of their own lives. They are not committing suicide, iow. This was my point.

If that was your point, then you concede Sage's point, that your claimed dis-analogy with liberty is invalid. You claimed:

And also liberty can be voluntarily surrendered...without sin, which is not the case with life

Since life can indeed be surrendered without sin, (as long as you don't take your own life), your claim fails.

From what I recall, mercy does not rank among the primary virtues but subsists as a sub-virtue, so to speak, under the category of charity.

This responds not in the least to the real issue, which is that a person can mis-apply mercy by a defective mercy that defeats justice, and setting up a false opposition between the two virtues is the only way your "trumps" could be conceived to begin with. The Fathers and Doctors do not set up an opposition between them. Any apparent opposition is with a false example of one of them.

It should be obvious that capital punishment is of a completely different sort than other punishments, in the sense that what is being taken away cannot be restored in any shape or manner whatsoever.

Enough with the "completely different sort" theory. Of course it is different. So is the crime - deserving of a permanent, irretrievable penalty. The fact that it is different in this way DOES NOT ESTABLISH that it cannot be used morally, justly, uprightly by the state. You haven't even TRIED to deal with the fact that BY NATURE a crime deserving of a permanent, irretrievable punishment will end up being "completely different" and that this is exactly called for. I sicken at seeing your repetition of this theory without any better foundation for it than before, and I will not put up with another bald repetition. If you want to make arguments, you'll have to do better than simply repeat "but it's completely different, you can't restore".

Hasn't the Catholic Church for past 30-40 years consistently against death penalty in developed nations?
Haven't they, meaning the Catholic hierarchy, given any argument, in particular, for the cases B and C?

B. Good arguments definitively against all use of DP _today in the US_:

C. Good probable arguments against all DP today in the US:

I realize that the OP is more in the nature of an intra-sectarian dispute but for the same reason, either it should be emphasized that the Catholic hierarchy really never had any good arguments for the idea that DP should not be resorted to in advanced nations now or the arguments that JPII and others made should be reported.

"The fact that it is different in this way DOES NOT ESTABLISH that it cannot be used morally, justly, uprightly by the state."

Never said that that it couldn't. If that were the case it would make no sense to argue against it from prudence, right?

"You haven't even TRIED to deal with the fact that BY NATURE a crime deserving of a permanent, irretrievable punishment will end up being 'completely different' and that this is exactly called for."

The fact that it may be "called for" and the fact that it may not be advisable to exercise it for prudential reasons are two different things.

"I sicken at seeing your repetition of this theory without any better foundation for it than before, and I will not put up with another bald repetition. If you want to make arguments, you'll have to do better than simply repeat 'but it's completely different, you can't restore'."

Sigh. It's not different because it's unrestorable, it's the fact that it is ontologically different that makes it unrestorable. A life is the sum of neither its parts nor its years.

Look, at certain points in time slavery, torture, and exectutions for heresy were all permitted. We've moved beyond them, and except for a few nut-jobs no one wants to go back to them. We did not move beyond them because they're inherently evil (except, perhaps, in the case of torture) but because of arguments from morality and prudence. I believe that capital punishment should be subject to the same examination/critique.

But what I'm getting here is not a consideration of the humane aspects of the issue, but what looks like a casuistic connect-the-dots game that makes it all seem like some sort of exercise in calculus. I find that disheartening, and I'll leave you to it. Feel free to start the villification now.

To answer your question: JPII and others in the Catholic Church have made a some arguments. None of them get passing grades.

I have seen bishops make so-called arguments in the first category, that using DP is intrinsically wrong. This is directly contrary to official, doctrinal teaching, and they ought to be hauled before a heresy board to explain why they can't read. Even, you know, grammar school kids learn to read. There aren't any GOOD such arguments.

I have seen those in high positions attempt to make arguments in category B, that the use of DP can and must definitively be proscribed today, no possible room for doubt or exceptions. None of these arguments pass the sniff test either. Usually they are so horrible as arguments that they have trouble not being laughed at. There aren't any GOOD ones.

Admittedly there are a few arguments that some people, with a certain amount of plausibility, might say belong in category C, good probable arguments that we shouldn't be using DP. The biggest problem these people have, though, is that not one, not one of these arguments, makes any headway at all on disputing the basic framework of punishment being ordered to justice as retribution. 9 times out of 10, those who advance these probable arguments don't even know that such justice is the primary end of punishment (even though JPII said it in Evangelium Vitae and the Catechism), and 99 times out of 100, anybody who advances one of these probable arguments won't ADDRESS that truth because they just don't want to deal with it.

My position is that all of those probable arguments are unsuccessful, or worse.

either it should be emphasized that the Catholic hierarchy really never had any good arguments for the idea that DP should not be resorted to in advanced nations now

Hence this post. The Catholics who claim that DP should not be resorted to in advanced nations have never had any good arguments. The center of the disputed issue is a matter of best practice, not doctrine, so their lack of good arguments does not undermine Catholic doctrine at all.

Look, at certain points in time slavery, torture, and exectutions for heresy were all permitted. We've moved beyond them, and except for a few nut-jobs no one wants to go back to them. We did not move beyond them because they're inherently evil (except, perhaps, in the case of torture) but because of arguments from morality and prudence. I believe that capital punishment should be subject to the same examination/critique.

Slavery is much like polygamy in that it is something that is intrinsically against God's will, but God tolerated anyway. Read the Old Testament if you don't believe me; polygamy was sanctioned in ancient Israel alongside slavery and divorce. It's foolish to equate what God permitted out of the hardness of our hearts and what God actually wants/is moral.

Look, at certain points in time slavery, torture, and exectutions for heresy were all permitted... We did not move beyond them because they're inherently evil (except, perhaps, in the case of torture) but because of arguments from morality and prudence. I believe that capital punishment should be subject to the same examination/critique.

Well, that at least is an argument. I don't agree with it, I think I can show that it is an unsuccessful argument, but I thank you for actually laying out an argument.

Slavery is considered (at least by the Catholic Church) to be intrinsically wrong. I will be a little more careful here: chattel slavery is considered to be inherently evil. Torture is, of course, considered to be inherently evil by the Catholic Church, Lumen Gentium and Evangelium Vitae and the Catechism are relatively clear on that. Executions for heresy are a sticky wicket with complicating factors that WON'T be helpful here (I think), (except that it was also execution). The Church, based on its document Dignitatis Humanae, which upheld the good of religious freedom, probably cannot be read easily to say that executions for heresy are OK in principle but prudentially not suggested any more.

So, no, you don't get a free pass for the initial premise.

However, there are indeed some things of which we say "it is no longer prudentially advisable to use these", and it is at least theoretically possible that DP can be examined in that light. We can allow that THESE examples might not have been the best examples, but maybe there is something else that could serve.

Even accepting the notional possibility still doesn't _prove_ that using DP will submit to the same critical treatment, much less prove that when the analysis is done, a comparable result will come out. The prospect that DP would be shown, by such an analysis, to be no longer prudentially valuable tends to founder (once you get into the nitty gritty of the analysis) on a number of factors that the other types of "we no longer do X" do not have in common. For example, chattel slavery has nothing running for it that tends to show that it presents an inherent value to the social order in and of itself (e.g. apart from its economic value), whereas DP does. In fact, it is worse: for none of the "we don't do this anymore" acts is there the reality that it served for an irreducible and essential common good in a way that no other course of action could even in theory replace, which is the claim for punishment - including DP. In addition to that burden, some of the claims in favor of DP, like for secondary ends, are of a very long-range nature that are incapable of being reduced to clear numbers or even clear relative weights in balancing competing goods. Hence even the very best arguments against DP on this score tend (not taking into account the irreducible and necessary goods but secondary ones) to arrive at conclusions like "and based on my experience of human motivations, more people will be more influenced by X rather than Y." An argument which, by its nature, is not strongly effective because the "my experience" cannot be fully conveyed from one person to another.

Post a comment

Note: In order to limit duplicate comments, please submit a comment only once. A comment may take a few minutes to appear beneath the article.

Although this site does not actively hold comments for moderation, some comments are automatically held by the blog system. For best results, limit the number of links (including links in your signature line to your own website) to under 3 per comment as all comments with a large number of links will be automatically held. If
your comment is held for any reason, please be patient and an author or administrator will approve it. Do not resubmit the same
comment as subsequent submissions of the same comment will be held as well.

Reverse the order of the digits in 31, then type the answer using letters instead of numbers, all lower case. (required):